[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 21, 2007
No. 06-15936 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14007-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY L. BARNETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2007)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Ricky Barnett appeals his 80-month sentence for the use of
interstate commerce to persuade, induce, entice, and coerce a minor to engage in
sexual activity, 18 U.S.C. § 2422(b). Barnett argues that the district erred in
increasing his base offense level by two levels for unduly influencing a minor
because the “minor” was actually an adult undercover law enforcement officer.
Barnett does not contest that the enhancement was authorized by our holding in
United States v. Root, 296 F.3d 1222 (11th Cir. 2002); rather, he argues that Root
was wrongly decided and is due to be overturned by this Court en banc.
We review a district court’s factual findings for clear error and its
application of the guidelines to those facts de novo. United States v. Kinard, 472
F.3d 1294, 1297 n. 3 (11th Cir. 2006). Further, a panel of this Court is bound by
the precedent of a prior panel “unless and until it is overruled by this court en banc
or by the Supreme Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir.
2002).
The guidelines provide for a base offense level of 24 for a violation of 18
U.S.C. § 2422(b), along with a two-level increase if “a participant otherwise
unduly influenced a minor to engage in prohibited sexual conduct.” U.S.S.G.
§§ 2G1.3(a), (b)(2)(B) (2006). To that end, the application notes define a “minor”
as, inter alia, “an undercover law enforcement officer who represented to a
2
participant that the officer had not attained the age of 18 years.” Id. at cmt. (n.1).1
Moreover, the commentary instructs that:
In determining whether subsection (b)(2)(B) applies, the court should
closely consider the facts of the case to determine whether a
participant’s influence over the minor compromised the voluntariness
of the minor’s behavior.
In a case in which a participant is at least 10 years older than the
minor, there shall be a rebuttable presumption, for the purposes of
subsection (b)(2)(B), that such participant unduly influenced the
minor to engage in prohibited sexual conduct. In such a case, some
degree of undue influence can be presumed because of the substantial
difference in age between the participant and the minor.
Id. at cmt. (n.3(B)).
In Root, we addressed a similar two-level enhancement that applied where “a
participant otherwise unduly influenced the victim to engage in prohibited sexual
conduct,” and where the definition of “victim” included “an undercover law
enforcement officer who represented to a participant that the officer had not
attained the age of 16 years.” 296 F.3d at 1232 (quoting U.S.S.G.
§ 2A3.2(b)(2)(B) and application notes).2 A rebuttable presumption of undue
influence also applied when the offender was “at least 10 years older than the
1
We treat the guidelines commentary as authoritative. United States v. Ivory, 475 F.3d 1232,
1234 n.2 (11th Cir. 2007).
2
On November 1, 2004, the Sentencing Commission amended § 2A3.2(b)(2)(B) to insert
the term “minor” for “victim.” See Appendix C, Amendment 664. The amendment also created
§ 2G1.3, the provision at issue here. Id.
3
victim.” Id. at 1233. First, we held that “[a] real victim is not needed under
§ 2A3.2(b)(2)(B) when an undercover agent is involved, as the focus is on the
offender’s conduct.” Id. at 1234. Second, we held that sentencing courts “may
also employ the rebuttable presumption of undue influence . . . when there is a 10-
year difference between the offender’s age and the age of the child portrayed by
the undercover agent.” Id.
Upon consideration of the record and the parties’ briefs, we discern no error.
Here, Barnett does not challenge the district court’s finding that the presumption of
undue influence applied, i.e., that he was at least 10 years older than the fictional
age of the undercover officer, nor does he challenge the court’s finding that he
failed to rebut the presumption of undue influence such that the two-level
enhancement applied. These findings were correct under Root, and, in response to
Barnett’s claim that Root was wrongly decided and should be reversed, we are
bound by that precedent “unless and until it is overruled by this court en banc or by
the Supreme Court.” Brown, 342 F.3d at 1246. Accordingly, we affirm Barnett’s
sentence.
AFFIRMED.
4